One of the fascinating aspects of the development of (western) marriage as a socio-religious-legal structure is the extent to which it derived legitimacy from symbolic performative acts by the parties to the marriage. (Those parties might be only the two people getting married, or their families might be considered "parties to the marriage" with required actions. It depended.) If the correct set of things were said and done (with "the correct set" altering over time and by local culture) then one was married. The idea that an external authority had the right to determine whether or not a marriage existed was rather late in developing. If a man and a woman of appropriate age and with no pre-existing impediments made a present-tense statement of consent to marry, that could (in some places/times) be sufficient to create the fact of marriage.
The requirement that it be "a man and a woman" was, to a large extent, an implcit rather than explicit pre-requisite.
This symbolic/performative aspect of the creation of the married state is what Boswell is focusing on in the current section. Because if you have a union between two people of the same sex that uses the same core set of performative acts as is used for m/f marriage (though perhaps not always the full set of performative acts), what is it that makes the two resulting unions qualitatively different? (As opposed to different in secondary consequences, such as those involving descendents and inheritance.) If we're going to say that a ceremony of adelphopoiesis between two men--which uses the same language and symbolism as a marriage--is not a marriage, wherein lies the difference except in the self-referential definition by gender?
This is where a broader study in time and gender could benefit from looking at the self-developed ceremonies of union that women created together in more recent times--ceremonies that deliberately invoked the performative acts of marriage such as an exchange of rings and vows. One big difference is that those f/f ceremonies belong largely to an era where state (or church) approval of a union had become required for it to be a marriage. It isn't necessary to have an absolute legal prohibition on two people of the same sex marrying if one has a social understanding that the state or the church will refuse to record such a union as a marriage, as long as the act of recording the marriage has taken over as the "performative act." To continue my theme of tying this book in with the marriage equality movement in the USA, this state gate-keeping function became a key aspect. If there is no explicit prohibition on the state recording a marriage between two persons of the same sex--because it was expected that the implicit social prohibition needed no additional back-up--then how can it be invalid for a duly appointed official of the state to upend everything by simply choosing to "open the gate"? When Gavin Newsom, as mayer of San Francisco, directed government officials to record same-sex unions as marriages, opponents scrambled to identify some other means of putting a lock on the gate that they hadn't expected anyone to open.
In 18th century England, there are more than a few marriage registers that record either the marriage of two persons with female names, the marriage of two persons who were later determined to be both female (or where the recorded noted a belief that both were female), or the refusal to record a marriage for a couple where it was believed that both were female. (See Donoghue 1996 ch. 2) Setting aside the question (which would have been legally irrelevant at the time) of couples involving a woman and a trans man, under what legal context would a properly recorded marriage of this type be valid? Under what pretext would it be invalidated? When additional information is available on specific cases (such as the late 17th century marriage between Amy Poulter and Arabella Hunt) it is curious that the "obvious" argument that a marriage of two women could not possibly be valid was not necessarily used. (In the case of Poulter and Hunt, the marriage was declared invalid because Poulter was already married at the time and it was therefore bigamy, which certainly suggests that the women's marriage could have been valid otherwise. Though one suspects another ruse would have been found to invalidate it.)
Boswell, John. 1994. Same-Sex Unions in Premodern Europe. Villard Books, New York. ISBN 0-679-43228-0
Chapter 5 & 6
Chapter 5: The Development of Nuptial Offices
Before 1000, priestly blessing of a marriage was an optional favor. Its absence (or refusal) didn’t make the marriage invalid. There was no standard form for this blessing. It was only considered an expected part of the ceremony for the clergy (priests could marry until the 11th century). Often the blessing was only for the bride, not for the couple as a unit.
Though various themes developed earlier, not until the 12th century did a systematic canon law of marriage develop. One feature (not always previously present) was the expressed consent of both parties. The Eastern church had been more active in oversight of marriage at an earlier date, as part of a greater overall involvement of the church in state affairs. But church involvement was still not required for a valid marriage if mutual consent were exchanged.
In local practice, other symbols besides the statement of consent might be used in the marriage contract, such as the transfer of a dowry and ritual abduction. Concubinage was still a recognized arrangement. But by the 12th century, the concept was developing that marriage should arise out of love, rather than love being a later consequence. The hypothetical Christian prohibition on divorce did not prevent it from being accepted up through the early medieval period.
Specific religious ceremonies for unions arose first in the East. An 8th century set of religious offices (i.e., rituals) includes one for male-female betrothal, two for male-female marriage, and one for “uniting” a male-male pair. The offices include similar structures and wording. (There is a detailed discussion of this comparison.)
The male-male ceremony invoked archetypal male pairs such as saints Serge and Bacchus and uses the language of “brothers.” Boswell reminds us of the examples of fraternal language being used for male-female married pairs.
There are seven other known pre-12th century examples of same-sex union ceremonies, mostly from Eastern sources. Many more are known beginning in the 12th century and tapering off slightly in the 13-14th century, with a resurgence in the 15-16th centuries. [Note: I didn’t notice any discussion of overall statistics for manuscript production across this period, so it’s hard to know whether these fluctuations are driven by the specific content or by overall patterns in manuscript culture.]
Most of these texts are in Greek, a few in Slavic liturgical languages, and none in Latin even though there is some evidence that similar ceremonies were performed in the West. [Note: Boswell specifically adduces an Irish example as support for “performed in the West” but I have questions about whether that example--discussed below--is clearly part of the same liturgical tradition as opposed to a similar but distinct local tradition.]
With the shift to printing in the 17th century, these same-sex rituals were rarely included in new versions of existing liturgical collections. In some cases, when included, it was noted that their use was forbidden.
Over the course of the textual tradition, the ceremony evolved from a simple set of prayers to an elaborate ceremony that could include candles, the joining and binding of hands, covering the heads with a stole, prayer, communion, a kiss, and circling the altar together.
There is a discussion of the manuscript contexts and philosophical questions about the nature and purpose of the ceremony. There is a consideration of theories and arguments about what these ceremonies don’t represent.
Chapter 6: Comparison of Same-Sex and Heterosexual Ceremonies of Union
This chapter does a detailed “compare and contrast” of the structure and features of Christian male-female marriage ceremonies and the same-sex union ceremonies in these liturgical collections. Both include an appeal to “peace and love (agape)” that is taken from the language of “Apostolic peace.” Both can include the symbolism of crowning. This is a common marriage symbol in Eastern ceremonies for male-female couples and is also seen for pairs of saints and martyrs. Both sets of rituals can include a prayer over a common cup that the couple drink from. This was not originally related to the taking of communion.
The same-sex union litany can include:
Crowning was originally part of the betrothal ceremony and was only shifted to the marriage ceremony later. It was less common in same-sex rites while the taking of communion together was less common in male-female rites.
A banquet was a common follower for all manner of formal ceremonies, though it was rarely mentioned specifically in the ritual for either type. (More often it is mentioned in descriptions of specific union ceremonies.)
After sharing the common cup, the priest leads the couple around the altar three times. This does not appear in the earliest rites but was common both types by the end of the Middle Ages.
Use of a symbolic cross and ring are common in male-female ceremonies but not for same-sex ones. More rare in both (and with uncertain purpose) was the presence of an unsheathed sword.
A key element in both types of ceremony was the joining of right hands, which derives from pre-Christian Roman practice. By the Middle Ages, the joining of right hands has become the primary iconic symbol of the act of marriage and appears frequently in both sacred and secular art.
Same-sex rituals do not mention rings and do not include a ritual expression of consent, but this is not common in male-female rituals either until the 12th century.
The Biblical passages specified to be read during the ceremony are different for the two types of rituals, although there is some overlap.
Systematic studies of medieval heterosexual marriage ceremonies have identified two recurring symbols, not all of which are necessarily present. Some relate specifically to dowry/bride-price and thus would not be expected to be included in a same-sex ceremony. Those elements that are regularly present in both are: joining hands, joining with the veil/stole, a kiss, a feast.